John B. Thompson died on the 7th of August, 1892; his will was filed on 12th of August, 1892, dated January 23, 1867, with a petition for probate thereof; said will (dated January 23, 1867) was admitted to probate on *358 the 26th of August, 1892, and' letters testamentary issued to the widow, Margaret Thompson, on the same date.

The homestead and household furniture were set apart and assigned by order of court to said widow, being all the property of said estate, except a watch and a few small articles appraised at $16.50. On 'or about the twenty-fifth day of August, 1893, a paper purporting to be another will of said decedent was filed in this court, with a petition for probate thereof, alleging that the same was the last will of said decedent. Margaret Thompson, the widow, demurred to said petition, which demurrer was sustained, with leave to amend. An amended petition was filed on or about the 16th of October, 1893. Afterward in due time said widow filed written grounds of opposition to the probate of said paper, and the petitioners, Mrs. A. B. Kidder and Mary A. Thompson, filed an answer to said opposition.

The issues raised by said petitions and contest were:

The cause came up for hearing before the court, a jury having been waived, on the 22d of November, 1893, John T. Rogers, Esq., appearing for petitioners, and N. B. Malville, Esq., appearing for contestant.

Dr. Daniel Maclean, a practitioner for about twenty-seven years, graduate of the Bennett Medical College, and chief of the faculty of California Medical College, eclectic school of medicine, testified that he knew the decedent testator by having visited him at his residence, but did not prescribe for him; deceased had dropsy; the doctor would not guarantee his cure; thought he was sound in mind.

Dr. John William Siefkes testified, in substance, that he was a graduate of Cooper Medical College; he met decedent frequently on the street; he was also attending physician on decedent at his last sickness; this doctor had treated deceased ■ for Bright’s disease; deceased was dropsical; had delusions and hallucinations; this doctor had known decedent for five years immediately anterior to his demise, which event oe *359 curred' August 7, 1892; witness had attended him up to that time; his memory had become impaired by chronic alcoholism; his mind was not sound on the 14th of July, 1892, the date of the instrument now propounded as a will; there was no time from June 1, 1892, to the day of his death, August 7, 1892, that decedent was competent to make a will; deceased was afflicted with Bright’s disease, interstitial nephritis, and diseased kidneys.

The physician’s testimony came in without objection or exception.

G. S. Eastman, a policeman, testified that decedent was under the influence of liquor nearly all the time in the spring of 1892, and he appeared mentally weak.

Mr. Gibson, an intimate acquaintance of the Thompson family, testified that he had called to see decedent frequently before he died in his last sickness, and that for three months before he died he was not in his right mind, and that his acts and remarks were peculiar and irregular and not like a man in his right mind.

Mrs. Jennie Taylor testified that decedent was not in his right mind on the 14th of July, 1892; he was always drunk; his mind was not right; he did not recognize this witness, sometimes he called her “Maggie” and “Cosgrove”; he asked her who took away the looking-glass on the 16th of July, 1892. The looking-glass was not taken away, but was still there.

Henry Lehrke testified that decedent was “half full” all the time; that something was the matter with his mind in the spring of 1892; he was not the same as he used t'o be mentally.

William Wiley testified that he was an intimate of decedent before he died; the mind of decedent began to give way and weaken in the spring of 1892, and for six months before he died he was mentally incompetent and unsound.

Mrs. Margaret Thompson, the widow, testified that decedent was not of sound mind for over six months before he died; he would talk of strange things that made her believe that he did not know what he was saying or doing.

This was about all the testimony as to the mental capacity of the decedent to make a will on 14th of July, 1892. Whether the mental incapacity and unsoundness of mind arose from excessive use of liquors or other cause does not *360 appear, nor does it matter. If decedent was mentally incompetent to make a will on the 14th of July, 1892, that is sufficient.

In behalf of the proponents of the will dated July 14, 1892, the following points, among others, were made:

On page 167, on interstitial nephritis, he says: “Alcohol, formerly thought to be a potent cause of the cirrhotic kidney, is now acknowledged to be an infrequent one. The analogy of this condition to the cirrhotic liver suggested a similar irritant action of the alcohol in the blood upon the interstitial tissue of the kidney. But although the portal blood contains a large amount of alcohol after its liberal ingestion into the stomach, by the time the blood passes through the heart and lungs and gets into the kidney very little, if any, remains unoxidized. It is barely possible, however, that when enormous quantities are used, enough may remain in the blood passing through the kidney to irritate its connective tissue, and also the cells lining the tubules. The latter, from their efforts to remove it, are probably more frequently irritated than the former; whence also the possibility, though rare, also, of chronic parenchymatous nephritis being caused by it, as referred to in discussing the latter disease.”

On page 185, concerning the same disease, he says: “With regard to beverages, there is no doubt that the use of strong alcoholic drinks should be avoided, and brandy, whisky and *362 strong sherries and ports should he prohibited. The light wines, and especially the red wines, and lighter alcoholic drinks, as lager beer, porter, may be used.”

Henry Doseher, one of the witnesses to the will of July 14, 1892, testified that he knew decedent for twenty years before he died; he was not asked if decedent’s mind was sound at the time.

George W. Howe, the person who acted as an attorney in the matter, might have been called as a witness, but he was not produced' by proponents of the paper of July 14, 1892. He was the lawyer of Mrs. Kidder, one of the proponents and sister of decedent, who testified that she employed and paid this person tep dollars to make the will.

Prank M. Thompson in his testimony failed to say that decedent’s mind was sound on the 14th of July, 1892, when said paper was signed; his answer to a question in relation thereto being, “he was all right.” On cross-examination he was interrogated as to any conversation between him and decedent in the buggy when he took decedent to his home on the 14th of July, 1892, but he said he did not remember; still he remembered other matters and what decedent said at other times. The subject matter of that conversation on the 14th of July, 1892, would have thrown some light on his mental condition at that time: Code Civ. Proc., sec. 1963, subds. 5, 6, see. 2061, subd. 7.

Upon the issue of undue influence the testimony shows that Mrs. Kidder, the sister of decedent, and Mrs. Thompson, his sister in law, came to decedent’s home frequently before his death and remained with him at his bedside for some time.

A resident on the opposite side of the street saw, through her window, the sister and sister in law place their arms around decedent when on his sickbed and kiss him on several occasions; they never did this in the presence of his wife. Afterward this sister, Mrs. Kidder, sent her brother Prank with a buggy on the 14th of July, 1892, and took him to Prank’s house, where the parties had a person acting as a lawyer; Prank told decedent’s wife that he was taking him to see a doctor; he did not take him to a doctor. These facts show a certain influence obtained by said parties over said decedent.

*363 Mrs. Kidder said that decedent told her that he desired to make a will, and her object in sending Frank for him was to have him make a will. Still, those facts were concealed from his wife. When Frank took him off in the buggy he told his wife he was taking him to see a doctor, which was not the fact; it was a misrepresentation to her.

This testimony is sufficient to sustain the issue of duress, fraud and undue influence involved in this proceeding, and also the freedom of decedent at the time; he was in the house of defendants, under their control and power, when this paper, dated July 14, 1892, and drawn by defendants’ lawyer, was produced, and decedent was constrained to sign it.

The third issue involved is as to the due execution and attestation of the will.

Frank M. Thompson testified that Mr. Hernán drew it, that he told Hernán what to say in it; Mr. Howe came to Frank’s house and spoke to decedent and took down on paper what he said; but it does not appear what decedent told Howe. At all events, Howe did not attempt to put on paper the statement of decedent. Mr. Hernán drew the paper at the dictation of Frank Thompson.

“At the house the lawyer read the paper and handed it to J. B. Thompson, and asked him to sign it.” Then it was handed by Howe to. Doscher and he was asked to sign it at a certain place, which he did. It does not appear that the certificate to the will was read or explained to the witness.

Testator did not dictate the will or read it. Frank M. Thompson dictated it at the office of the attorney, Mr. Hernán. Frank M. Thompson, in fact, had the will drawn to suit himself.

The testator did not request the witnesses to sign their names as witnesses at the end of the will, and there was no signing done by any of the witnesses at the request of decedent.

The action of Howe in the premises, as appears by the testimony, should not be substituted as the act of decedent—the statute should not be so construed.

The decedent did not declare that the paper of July 14, 1892, was his will. It was not his will, and should be and is denied probate: Civ. Code, sec. 1276.